Why Snowden Won’t Get the Public Interest Defense He Deserves

More than 300 parliamentarians in a body representing 820 million Europeans just voted to urge the U.S. government to give National Security Agency contractor Edward Snowden a fair shot at justice, as should be his right.

The Parliamentary Assembly of the Council of Europe yesterday passed a resolution that calls on “the United States of America to allow Mr. Snowden to return without fear of criminal prosecution under conditions that would not allow him to raise the public interest defense.”

That’s legalese for saying that he should have the opportunity, if prosecuted, to prove that the information he revealed was valuable for informing public debate. The prosecution would then have the burden of showing that the disclosures caused significant harm. The judge or jury would decide if the benefit outweighs the harm.

If they decided that, yes, the benefit does outweigh the harm, Snowden would have a complete defense and would be found not guilty. Even if they decided it does not, the punishment would have to be proportionate to the harm caused, weighed against the public interest in disclosure. 

Snowden, charged with two violations of the Espionage Act, faces 30 years in prison. The act, passed in 1917 when the United States was in the heat of war preparations (and which, among other anachronisms, outlaws “any … abusive language about … the uniform of the Army or Navy”), does not allow a public interest defense. Nor does it require the prosecution to prove, as most of America’s European allies require, that the accused intended to—or actually did—cause harm to national security.

U.S. law is out of step with other democracies in respect to both the penalties for unauthorized disclosure of secrets and available defenses. A full statement of global norms concerning national security whistleblowing is set forth in the Tshwane Principles on National Security and the Right to Information, which have been widely endorsed, including by the Council of Europe’s Parliamentary Assembly.

The extensive congressional debate on government surveillance, culminating in passage of the USA Freedom Act, is among the most significant evidence of the public interest value of Snowden’s disclosures.

In addition, the disclosures revealed that U.S. officials were less than truthful in their public comments and congressional testimony about the government’s domestic surveillance practices, both in the scope of the programs and their effectiveness. As noted by Michael German, senior policy counsel in the ACLU’s Washington legislative office, “Such false and misleading testimony threatens more than just Americans’ privacy; it threatens democratic control of government.”

The United States, the EU, Germany, and Brazil all opened investigations into mass surveillance as a result of the disclosures. A large number of documents have subsequently been released by the U.S. government, including a 2011 FISA Court opinion that ruled some NSA surveillance actions unconstitutional.

A number of commentators and government officials have claimed that Snowden’s revelations have, by revealing methods of U.S. surveillance, caused grave damage to national security. NSA Director Michael Rogers said that they have “had a material impact on our ability to generate insights as to what terrorist groups around the world are doing.”

But neither Rogers nor any other U.S. government official has supported claims with details about the alleged damage. They say doing so would exacerbate the damage to the U.S. government’s intelligence collection activities. In response to a Freedom of Information Act lawsuit, the Defense Intelligence Agency (DIA) in February released to VICE News more than 100 pages of internal reports examining the damage to national security caused by Snowden’s disclosures. The report was heavily redacted. 

Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists called these redactions “a missed opportunity for the agency to explain, at least in general terms, what sorts of damage it believes that Snowden did. It’s hard to understand why DIA can’t say as much, or more.”

Mort Halperin, a senior advisor at the Open Society Foundations, speaking at a side event to the Council of Europe vote, said the public interest should not only be considered as a defense to unauthorized disclosures but that, in addition, “the law should require consideration of the public interest vs. harm in making determinations as to whether information should be classified or declassified.”

U.S. defense and intelligence agencies have started to take steps in that direction. According to the latest data [PDF] from the Information Security Oversight Office, in FY 2014, challenges by government employees and contractors to classifications sextupled over the 2013 rate, with an increase in successful challenges of 56 percent (or 453 reductions in classification status), and the number of newly created national security secrets dropped to a record low.

It would be unrealistic to think that the United States might allow Snowden or any other national security whistleblower to raise a public interest defense in the foreseeable future. But public awareness of the increasing acceptance for such a defense around the world could well contribute to efforts to promote greater attention to the public interest in classification and declassification decisions and, in general, to reduce secrecy concerning matters that should be the subject of informed and robust public debate.